Terms and Conditions
This page (together with the documents referred to on it) outlines the terms and conditions on which we agree to provide the service(s) offered on our website, www.emuink.ie, to you. Please read these terms and conditions carefully before ordering any services from our site. By ordering any of our services you are agreeing, and are signifying your agreement, to be bound by these terms and conditions. If you refuse to accept these terms and conditions, you should not order any services from our Site.
1. Information about us
We operate the website; www.emuink.ie (the "Site"). We are Emu Ink Limited, a company registered in Ireland under company number 520279 and with our registered office and trading address at Level 1, The Chase, Carmanhall Road, Sandyford Industrial Estate, Dublin 18, D18 Y3X2.
2. The Services
2.1 Our Services are designed to help you edit, self-publish
and distribute any original book which you have created (the "Work")
in order to convert it to a digital book. Without limiting the Services
that we may offer on our Site from time to time, the Services that we
currently provide include the following:
(a) structural editing, secondary editing and proofing;
(b) eBook Conversion;
(c) eBook Distribution;
(d) Limited Printing;
(e) eLibrary hosting;
(f) design work ("the Services").
2.2 Where we agree to provide the eBook Conversion service to convert the Work into a file format which can be distributed to the interested parties, we will assist you in taking the Work from Microsoft Word or similar format and laying the Work out in a format which is suitable for publication and then converting the Work.
2.4 Where we agree to assist you in creating a short-run of printed copies, we will do so subject to the terms set out on our Site and such other terms as we may reasonably specify from time to time.
2.5 Where we provide structural editing, secondary editing, proofing and/or design work in connection with a Work, you agree that we shall have the final editorial decision in relation to all elements of the Work and shall be entitled to alter, adapt, edit, amend or delete the Work as we see fit.
3. Order Process
After placing an order, you will receive an e-mail from us acknowledging that we have received your order. Please note that this does not mean that your order has been accepted. Your order constitutes an offer to us for the provision of our Services. All orders are subject to acceptance by us and we may request further details from you before we can determine the extent and price of the Service(s). We will confirm such acceptance to you by sending you an e-mail that confirms the extent of the services to be provided, the cost of the services, the payment method, and confirmation that the order has been accepted ("Order Confirmation"). The contract between us will only be formed upon receipt of payment in accordance with the directions set out in the Order Confirmation.
4.Representations and Warranties
4.1 You hereby represent and warrant to us that:
(a) The Work is free and clear of any defamatory material, plagiarism, breach of privacy, misrepresentation of facts and/ or any other material which has the potential to expose us to civil and/or criminal liability;
(b) The Work does not infringe upon any copyright, proprietary and/or intellectual property right, common law or statutory law;
(c) You are the sole owner and copyright holder of the Work with full power to enter into this contract. If the Work has been previously published in whole or in part, you currently hold all intellectual property rights to the Work and are legally permitted to enter into this agreement;
(d) You are not a third party or agent acting on behalf of the author or other owner of the Work; and
4.2 You agree and undertake to indemnify and keep us indemnified against all liabilities, costs, expenses, damages and/or losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by us arising out of or in connection with any breach of the representations and warranties contained in this clause and/or otherwise relating to any claim made against us for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Work.
5. Grant of rights
5.1 By remitting payment in accordance with the terms of the Order Confirmation
you irrevocably grant us a three year exclusive licence from the date of payment
(the "Term") to exploit the Primary Rights in the Work throughout the world during
the Term. You also irrevocably grant us :
(a) the Rental Rights and
(b) a 10% share of any gross sums you (or any related company or entity in which you have an interest) receive from the Subsidiary Rights in the Work throughout the world in perpetuity. You further grant us an option to extend the Term by a further 12 months at our sole discretion (the "Option") upon service of notice in writing of our desire to exercise the Option at any stage prior to expiry of the Term.
5.2 The Primary Rights shall mean the sole and exclusive right to sell, lease, publish, print, distribute, exploit and license the Work and/or any parts thereof in all media including but not limited to all methods of publication and reproduction including but not limited to digital, hardback, paperback, serialization, translations, anthologies, quotations, mechanical reproduction and/or the Internet.
5.3 The Rental Rights shall mean the exclusive right during the Term and thereafter the non-exclusive right to offer access to a copy of the Work to our customers through our eLibrary service.
5.4 The Subsidiary Rights shall mean the Merchandising Rights and Media Rights in the Work.
5.5 The Merchandising Rights shall mean the sole and exclusive right to manufacture, sell, lease, license, supply, distribute, and otherwise exploit products, merchandise and commodities including (without limitation) toys, novelties, games, posters, articles of clothing and other material which make reference to or are based on elements of the Work.
5.6 The Media Rights shall mean the sole and exclusive right to adapt, use, copy, license,
authorize, print, transmit, disseminate, store, retrieve, display, process, record, play back,
rent, lend, supply, sell, promote or otherwise exploit by any method, medium or process
(whether created in the future or in existence now) the Work in the following media:-
(a) all forms of television including standard, cable, digital, and/or satellite;
(b) all forms of radio;
(c) all forms of telecommunications systems including telephones and mobile phones, pagers;
(d) all mechanical forms of reproduction including video, laser discs, cassettes and DVDs;
(e) all forms of non-theatric audiences whether for business or commercial use, educational, cultural, religious or social, schools, museums, readings, plays, speeches, addresses or lectures;
(f) all forms of Theatric exploitation including cinemas;
(g) all forms or publishing in printed form including but not limited to hardbacks, paperback, digests, serializations, newspapers, magazines, comics, periodicals, quotations, anthologies and/or translations;
(h) all forms of publishing and/or dissemination of information by any electronic method and process, including the internet, worldwide web or intranet;
(i) all forms of computer software and interactive multi-media such as compact disc, CD Roms, computer games including all circumstances where there is an element of interactivity and/or there is a combination of sound, text, vision, graphics or otherwise;
(j) theatre and stage plays;
(k) feature films and documentaries;
(m) title rights;
(n) formats in any form;
(o) any character in any form.
6. Moral Rights
6.1 We acknowledge that you assert your moral right to be identified as the author / creator of the Work and in particular to be reasonably, prominently and clearly identified as such on all copies of the Work in all media and on all publicity, promotional, marketing and packaging material. This assertion shall bind both the parties to the within agreement and any other third party who acquires any interest or rights in the Work at any time.
6.2 You acknowledge that all cover art produced by us for use in connection with the Work remains our sole property. You further acknowledge that the digital files and underlying code created in connection with the Work remain our sole property. Nothing in this clause shall prejudice your right to the copyright in the Work itself.
7. Consumer Rights
Due to the nature of the products and services offered on the Site, you acknowledge
and accept that no right of cancellation and/or return pursuant to section 6(1) of the
European Communities (Protection of Consumers in respect of contracts made by means of
Distance Communication) Regulations, 2001 (the "Regulations") shall apply to:
(a) Provision of our Services if performance has commenced in accordance with the Order Confirmation before the end of the cancellation period specified in the Regulations;
(b) The supply of goods made to your specifications and/or which cannot be returned because of their nature (such as any Work printed at your request);
(c) In the event that any of the grounds set out in section 6 (4) of the Regulations apply.
8.1 In consideration of a Publishing Partner agreeing to provide part of the eBook Distribution Service, you agree that the Publishing Partner shall be entitled to such proportion of the proceeds of sale of any Work as may be set out in the Publishing Partner's terms and conditions of use as may be determined by that Publishing Partner from time to time. While the amount payable by the Publishing Partner to you in respect of any Work (the "Royalty") is typically between 40% to 50% of the sale price of the Work, the amount of any Royalty may vary and we are not responsible for the amount of Royalty offered by any of our Publishing Partners. We do not guarantee any level or return in respect of Royalties from any Publishing Partner.
8.2 We will remit all Royalties received by us from any Publishing Partner in respect of your Work to you within 6 months of receipt by us. However, should the aggregate Royalty received by us in any period be less than €25, for administrative convenience, we will retain such an amount and only remit the Royalties to you once cumulative Royalties exceed €25.
8.3 Any amount remitted by us shall, at our discretion, be by cheque to such address or by electronic transfer to such bank account in Ireland as you may notify to us from time to time. It shall be your responsibility to notify us of any change in your address and/or bank account details.
8.4 You acknowledge that the standard payment terms by Publishing Partners to us is between 3 to 6 months, but may in certain circumstances be longer.
8.5 All payments by us shall be in Euros. Where the currency used in respect of any sale is any currency other than Euros, we shall apply the appropriate currency conversion rates as we shall determine at our sole discretion. We may change currency conversion rates at any time, without prior notice.
8.6 For accounting purposes, we reserve the right to write off your account balance when there has been no transaction in respect of a particular Work for 18 months and the account balance for that Work is below €25.
8.7 We reserve the right to withhold payment or charge back your account due to any breach of this agreement by you, pending our reasonable investigation of the breach.
8.8 You agree to pay all applicable taxes or charges imposed by any government entity. In the event that it is so required by any government entity, we have the right to withhold applicable taxes and charges from the payouts to you.
8.9 If you wish to dispute any payment, you should do so within 30 days of the date of receipt of such payment. Failure to do so in this period shall you be deemed to have accepted the correctness of the payment.
8.10 Payment shall be calculated solely based on records maintained by us. No other measurements or statistics of any kind shall be accepted by us or have any effect under this agreement.
9. Price and payment
9.1 The price of the Services (including, where applicable, our delivery charges) will be as quoted on our Site from time to time or as otherwise set out in the Order Confirmation, except in cases of obvious error.
9.2 Prices include VAT.
9.3 Prices (including, where applicable, delivery charges) are liable to change at any time.
9.4 Our Site contains a number of Prodcuts and Services and it is always possible that, despite our best efforts, some of the Products and/or Services listed on our Site may be incorrectly priced. If the correct price for a Service is higher than the price stated on our site, we will normally, at our discretion, either contact you for instructions before dispatching the Product or providing the Service, or reject your order and notify you of such rejection.
9.5 We are under no obligation to provide any Product and/or Service to you at the incorrect price, even after we have sent you an Order Confirmation, if the pricing error is obvious and unmistakeable and could have reasonably been recognised as an error.
9.6 Payment for all Products and/or Services must be by credit or debit card. Notwithstanding the foregoing, in the event that there is any amount outstanding from you to us at any time, we shall be entitled to set-off such amount from any subsequent payment to you.
10. Limitation of Liability
10.1 To the fullest extent permitted by applicable laws, neither Emu Ink Limited nor any of its directors, employees, affiliates or other representatives will be liable for loss or damages arising out of or in connection with the use of, or inability to use, the Prodcuts and/ or facilities or Services offered through the Site including but not limited to indirect or consequential loss or damages, loss of data, income, profit or opportunity, loss of or damage to property and/or claims of third parties, even if Emu Ink Limited has been advised of the possibility of such loss or damages or such loss or damages were reasonably foreseeable.
10.2 In no event shall Emu Ink Limited's total liability to you for all damages, losses, and claims (whether in contract, tort or otherwise) exceed the amount paid by you, if any, in respect of our Products or Services in the preceding 12 months.
10.3 Nothing in this agreement excludes or limits our liability for:
(a) death or personal injury caused by our negligence;
(b) fraud; or
(c) any other matter for which it would be illegal for us to exclude or attempt to exclude our liability.
11. Written communications
Applicable laws require that some of the information or communications we send to you should be in writing. When using our Site, you accept that communication with us will be mainly electronic. We will contact you by e-mail or provide you with information by posting notices on our website. For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and/or other communications that we provide to you electronically comply with any legal requirement that such communications be in writing. This condition does not affect your statutory rights.
All notices given by you to us must be given to us at email@example.com. We may give notice to you at either the e-mail or postal address you provide to us when placing an order. Notice shall be deemed received and properly served 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
13. Transfer of rights and obligations
13.1 The contract between you and us is binding on you and us and on our respective successors and assignees.
13.2 You may not transfer, assign, charge or otherwise dispose of any Contract you enter into with us, or any of your rights or obligations arising under it, without our prior written consent.
13.3 We may transfer, assign, charge, sub-contract or otherwise dispose of any Contract we enter into with you, or any of our rights or obligations arising under it, at any time during the term of the Contract.
14. Events outside our control
14.1 We will not be liable or responsible for any failure to perform, or any delay in performance of, any of our obligations under a Contract that is caused by events outside our reasonable control (Force Majeure Event).
14.2 A Force Majeure Event includes any act, event, non-happening,
omission or accident beyond our reasonable control and includes in
particular (without limitation) the following:
(a) strikes, lock-outs or other industrial action;
(b) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(c) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
(d) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
(e) impossibility of the use of public or private telecommunications networks; and
(f) the acts, decrees, legislation, regulations or restrictions of any government which we are subject to from time to time.
14.3 Our performance under any Contract is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period.
15.1 If we fail, at any time during the term of a Contract, to insist upon strict performance of any of your obligations under the Contract or any of these terms and conditions, or if we fail to exercise any of the rights or remedies to which we are entitled under the Contract, this will not constitute a waiver of such rights or remedies and will not relieve you from compliance with such obligations.
15.2 A waiver by us of any instance of default will not constitute a general waiver of any subsequent default.
15.3 No waiver by us of any of these terms and conditions will be effective unless it is expressly stated to be a waiver and is communicated to you in writing in accordance with clause 12 above.
If any of these terms and Conditions or any provisions of a Contract are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will, to the minimum extent necessary, be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
17. Entire agreement
17.1 These terms and conditions and any document referred to in them constitute the whole agreement between us and supersede any and all previous discussions, correspondence, negotiations, previous arrangement and/or understanding us relating to the subject matter of any Contract.
17.2 In entering into a Contract, you acknowledge that you are not relying upon any representation or warranty that is not set out in these Terms and Conditions.
17.3 Each of us agrees that our only liability in respect of those representations and warranties that are set out in this agreement will be for breach of contract.
17.4 Nothing in this clause limits or excludes any liability for fraud.
18. Our right to vary these terms and conditions
18.1 We reserve the right to revise and amend these Terms and Conditions from time to time and you should consult the Site for details of the relevant terms and conditions prior to placing any order for any of our Products and/or services.
18.2 You will be subject to the terms and conditions in force at the time that you order products from us, unless any change to those terms and conditions is required to be made by law or governmental authority (in which case it will apply to orders previously placed by you), or if we notify you of the change to the terms and conditions before we send you the Order Confirmation.
19. Law and jurisdiction
Contracts for the purchase of Products and/or Services through our Site and any dispute or claim arising out of or in connection with them or their subject matter or formation will be governed by Irish law and will be subject to the exclusive jurisdiction of the courts of Ireland.